On October 17, 2013, a federal district court judge in New Jersey dismissed a putative class action against Weight Watchers International, Inc. (Weight Watchers) alleging that Weight Watchers misrepresented the calorie content of its ice cream bars. The court dismissed because the plaintiff failed to allege that her testing methods for the challenged products complied with the Food, Drug and Cosmetic Act’s (FDCA) methods for testing calorie content. The plaintiff in this case purchased two Weight Watchers diet ice cream bars but sought to represent consumers who purchased any bar in the diet ice cream product line in a lawsuit alleging violation of several state consumer protection laws.
The plaintiff filed suit after viewing a “Today Show” segment that investigated the calorie count in low-calorie ice creams and found some Weight Watchers’ products had 16% more calories than listed on the label. Plaintiff’s lawsuit claims the challenged bars violate FDCA standards because her testing revealed they contain upwards of 20% more calories than listed on the label. Plaintiff alleged that these products were sent to an independent laboratory that performed tests “in accordance to, and in compliance of, FDA guidelines” and the results revealed that the bars contained between 20% to 36% more calories than listed on Weight Watchers’ labels.
The judge dismissed without prejudice the plaintiff’s claim that Weight Watchers’ ice cream products are misbranded. Under the FDCA, food is deemed “misbranded” unless its “label or labeling bears nutrition information that provides the total number of calories . . . in each serving size or other unit of measure of the food.” 21 U.S.C. § 343(q)(1)(C). The implementing regulations for Section 343(q)(1)(C) explain that the “total number of calories” can be calculated using one of five methods. The judge held that plaintiff’s claims were preempted by the FDCA because plaintiff failed to: (1) plead that she tested the ice cream products using every one of the five permissible FDCA methods for testing calorie counts under 21 U.S.C. § 343(q)(1)(C); and (2) plead that every one of the tests exceeded the listed caloric value by 20%, thus exceeding the 20% “safe harbor” allowance permitted under 21 C.F.R. § 101.9(g)(5).
Weight Watchers additionally argued that the plaintiff did not have standing to challenge the entire diet bar line since she only purchased two products. The judge rejected this argument on the ground that the basis for plaintiff’s claims is “the same with respect to all of the Diet Bars” and “the Diet Bars are closely related because they belong to the same product line.” The court further held that class certification is the proper vehicle to challenge standing regarding products that the named plaintiff did not purchase.
However, the judge agreed with Weight Watchers’ challenge to the portions of the complaint that discussed the Today Show segment and noted that these portions were “potentially inflammatory, and confusing and collateral” because the plaintiff failed to include the Today Show’s determination that the products’ labels were legal under the FDCA’s “safe harbor” provision.
Plaintiff has 30 days to file an amended complaint.